The growing use of commercial cargo spacecraft, like Orbital Sciences Corporation’s Cygnus (above), and plans for future commercial crew vehicles, have led the FAA to argue for the need for “on-orbit authority” to regulate their safety, particularly regarding orbital debris mitigation. (credit: NASA)

The quest for on-orbit authority

by Jeff FoustMonday, May 19, 2014

A long-running popular topic in some parts of the space community, particularly the more entrepreneurial elements of it, has been the issue of space property rights. Companies planning ventures to the Moon, asteroids, and elsewhere in the solar system wonder if they will be able to lay claim to, and make use of, resources on these bodies, given that the Outer Space Treaty prevents countries from making claims of sovereignty on celestial bodies.

That debate has largely been an academic one, although in the not-too-distant future could become a more pressing issue as entrepreneurial ventures move forward with plans for resource extraction and other activities on the Moon and asteroids. In the nearer term, though, government agencies and the private sector will have to grapple with another issue of regulatory jurisdiction: who has the authority to regulate spacecraft in orbit?

Today, the concept of “on-orbit authority” is a gray one for commercial spacecraft. In the United States, the FAA’s Office of Commercial Space Transportation (FAA/AST) regulates the launch and reentry of commercial vehicles. However, it has no direct ability to regulate spacecraft between the end of launch and the beginning of reentry, including oversight of their activities or ensuring they are in the proper orbits and don’t pose a risk to other spacecraft.

FAA officials have made it clear in recent years that they would like to close that “regulatory gap” between launch and reentry, seeking on-orbit authority for commercial vehicles. “The FAA believes it’s time to consider closing the current regulatory and safety gap between launch and reentry,” said George Nield, FAA associate administrator for commercial space transportation, at the opening of the meeting of the FAA’s Commercial Space Transportation Advisory Committee (COMSTAC) in Washington May 8. “Our goal would be to promote orbital space transportation safety, including for orbital debris mitigation, for spacecraft whose primary function is transportation.”

Granting FAA on-orbit authority would also reduce regulatory uncertainty on those topics and more, including satellite servicing and commercial activities on the Moon and asteroids, Nield argued, since it’s not clear today which agency or agencies would have such oversight. “Regulatory uncertainty translates into business risk, and investors tend to dislike business risk,” he said.

Nield said that FAA/AST’s current dual mandate—to both protect the interests of the US and to promote US commercial space transportation—“are compatible with, and make us a logical choice to oversee, these new types of operations, even though they would occur between launch and reentry.”

However, the FAA is not the only government agency to make a case for having authority over commercial spacecraft. Today, two agencies regulate American commercial spacecraft: the Federal Communications Commission (FCC) licenses satellite communications, while the National Oceanic and Atmospheric Administration (NOAA) licenses commercial remote sensing satellites.

The FCC has not been averse to use that regulatory authority beyond simply ensuring satellites operate at the right frequencies. Satellites that obtain an FCC license must file with the FCC a plan to avoid the creation of debris, including how it will deorbit the satellite at the end of its life. For satellites in low Earth orbit, that means reentering within a specified time after the satellite ends operations, while those in geostationary orbit (GEO) must move to a “graveyard orbit” several hundreds kilometers above GEO.

“There is a direct connection between the radio communication function that the FCC is charged with licensing and the physical operations of spacecraft,” said Kensinger.

“The idea of regulating on-orbit activities isn’t something that seems unnatural,” said Karl Kensinger, deputy chief of the satellite division within the FCC’s International Bureau, during a presentation later at the May 8 COMSTAC meeting. He said that the Communications Act that established the FCC in the 1930s recognized that radio waves don’t stop at national boundaries, providing the underlying basis for licensing satellite communications.

He acknowledged, though, that some people are skeptical that the FCC has any kind of on-orbit authority beyond radiofrequency issues, such as orbital debris mitigation plans. Those debris mitigation efforts would serve the national interest, he noted, including protecting people and property in space and on the Earth, and the FCC has a role since spacecraft are controlled primary through communications links. “There is a direct connection between the radio communication function that the FCC is charged with licensing and the physical operations of spacecraft.”

Kensinger, though, didn’t indicate if the FAA’s interest in on-orbit authority would clash with the FCC. “There’s been a larger and ongoing discussion in the US government about how best to organize and supervise US space activities,” he said. “We very much appreciate being a part of that discussion and we hope to provide a positive contribution to it.”

At the hearing, the FAA made the case again for gaining on-orbit authority. “An issue of oversight authority and enforcement emerges with the increasing number of commercial space transportation vehicles, which will operate differently from communications or Earth observing satellites,” said George Zamka, deputy associate administrator for commercial space transportation at the FAA, in his testimony. “Rather than travel to and remain in stable orbits, commercial transportation vehicles will move in between orbits and rendezvous with, attach to, and deliver cargo and people to other space vehicles. These orbital operations could cause collisions that would create orbital debris.”

Zamka offered two options for regulation that could be adopted separately or together. One would give a regulatory agency the ability to license on-orbit transportation, which would include reviews of the licensee’s orbital debris mitigation plans. The second would give an agency enforcement authority, giving warnings of potential collisions and measures spacecraft operators should take to avoid them. “It is time to explore the orbital safety of commercial space transportation under the Commercial Space Launch Act,” he said.

“I would caution against legislating further until we have a better understanding of the issues involved,” said Rep. Johnson.

The FAA’s proposal didn’t have a lot of support from members of the committee. Rep. Mo Brooks (R-AL), who chaired the hearing, noted some have argued that the FAA’s mandate should be limited to launch and reentry, where its expertise lies. Zamka responded that FAA already has experience talking with spacecraft operators and dealing with orbital debris mitigation issues. “We have existing experience and credibility with the launch operators,” he told Brooks.

“We really just want to begin the exploration of what the solution might be” for on-orbit authority, Zamka said later in his testimony. That means bringing together not just government agencies and members of industry to discuss which agency or agencies should have this oversight, and how it would work.

If FAA did receive on-orbit authority, it would likely still rely on space situational awareness sensors operated by the Defense Department. Today, the Joint Space Operations Center, or JSpOC, provides notices to satellite operators of potential conjunctions, or collisions, with debris, but as witnesses at the hearing noted, no one was the authority to make the spacecraft maneuver to avoid a potential collision—beyond the operator’s own self interest, of course, of not having its satellite destroyed.

Zamka said that, if the FAA had on-orbit authority, it would be able to compel licensed operators to maneuver to avoid a potential collision. “That can be done in a number of ways,” he said, including discussions in the licensing process on criteria by which the operator would agree to maneuver.

Members of the committee, while concerned about the orbital debris threat, didn’t appear to be in a hurry to take action on giving the FAA or other agencies on-orbit authority for debris mitigation or other activities. “From my standpoint, I’m really not prepared to legislate yet, because I feel like there’s still a lot we need to know,” said Rep. Donna Edwards (D-MD), ranking member of the space subcommittee.

The full committee’s ranking member, Rep. Eddie Bernice Johnson (D-TX), shared similar sentiments. “I would caution against legislating further until we have a better understanding of the issues involved,” she said. Given the relatively low priority on-orbit authority currently has, at least when compared to other space policy issues, it could be some time before Congress feels like it’s ready to take on this issue.

Jeff Foust (jeff@thespacereview.com) is the editor and publisher of The Space Review. He also operates the Spacetoday.net web site and the Space Politics and NewSpace Journal weblogs. Views and opinions expressed in this article are those of the author alone, and do not represent the official positions of any organization or company, including the Futron Corporation, the author’s employer.